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MODERN  TENDENCIES  OF 
LEGISLATION 


AN  ADDRESS 

BEFORE   THE   TWENTY-FOURTH    ANNUAL 
CONVENTION    OF   THE 

Washington 
State  Bar  Association 

TACOMA 

JULY  30-31  AND  AUG.  1,  1912 

BY 

HON.   OSCAR  CAIN 

ifi 

UNITED     STATES     DISTRICT    ATTORNEY 

SPOKANE 

«L    «L    «L    «L    €L    C. 


EFFENBEE    PUBLISHING    COMPANY,  OLYM  PIA.    WASHINGTON 


T 


MODERN  TENDENCIES  OF  LEGISLATION. 


HON.  OSCAR  CAIN,  U.  S.  DISTRICT  ATTORNEY,  SPOKANE,  WASH. 

Legislation,  as  it  is  now  understood,  is  a  matter  of  comparatively 
recent  origin.  There  had  been  a  legislative  body  in  Great  Britain 
for  centuries  before  it  undertook  to  perform  any  other  function 
than  to  declare  what  the  law  was.  The  Saxon  idea  being  that  the 
law  was  something  that  had  always  existed  and  was  known  to  every 
one,  and  that  the  only  purpose  of  a  legislature  was  to  declare  the 
law  when  some  powerful  individual  or  class  attempted  to  over-ride 
it.  This  was  intended  merely  as  a  reminder  that  the  law  should 
remain  as  it  had  always  been. 

In  the  thirteenth  century  Parliament  began  making  new  laws, 
but  these  accumulated  very  slowly.  During  the  reign  of  Charles  I, 
the  entire  output  of  legislative  enactment  to  that  time,  collected  and 
bound  together,  filled  but  five  small  volumes — less  than  the  present  in- 
dex of  our  federal  statutes.  Gradually,  however,  legislative  bodies 
awoke  to  a  sense  of  their  powers,  and,  in  this  country  especially,  have 
exercised  them  with  increasing  frequency. 

Professor  Stimson,  who  occupies  the  chair  of  comparative  legis- 
lation at  Harvard,  estimates  that  during  the  first  half  of  the  last  cen- 
tury the  legislative  enactment  of  the  Congress  of  the  United 
States,  added  to  the  legislative  enactment  of  the  several  states, 
is  a  thousand-fold  the  entire  law  making  of  England  for  the  five 
centuries  preceding,  and  the  present  tendency  is  to  increase  rather 
than  diminish  the  amount  of  legislation.  Since  1890  congress  has 
passed  more  law  than  during  the  first  one  hundred  years  of  the 
existence  of  this  government.  The  legislature  of  Washington,  since 
its  organization  as  a  territory,  has  passed  almost  as  much  new  law 
as  has  been  passed  in  England  since  the  time  of  Cromwell.  This, 
of  course,  does  not  take  into  account  the  immense  amount  of  private 
and  special  legislation  passed  in  that  country. 

A  similar  amount  of  legislative  enactment  has  characterized  the 
progress  of  the  several  states.  When  we  contemplate  this  vast  addi- 
tion to  the  written  law,  the  inquiry  naturally  suggests  itself:  Whither 
are  we  tending,  and  what  is  the  net  result  of  all  this  legislation?  It 
is  only  that  part  of  it  which  shows  a  tendency  to  depart  from  estab- 
lished usages  and  introduce  new  features  into  our  state  and  federal 
government  with  which  this  paper  is  concerned. 

If  there  was  one  subject  upon  which  the  founders  of  this  govern- 
ment had  more  pronounced  views  than  another,  it  was  that  of  personal 
liberty.  Following  the  spirit  of  the  English  common  law,  they 
sought  to  erect  every  safeguard  and  to  take  every  precaution  to 
protect  the  rights  and  secure  the  liberties  of  the  individual  man. 


MODERN  TENDENCIES  OF  LEGISLATION 


In  its  earlier  legislation,  congress  sought  to  condemn  only  those 
acts,  the  doing  of  which  would  seriously  affect  the  community.  The 
same  spirit,  with  rare  exceptions,  characterized  the  early  legislation 
of  the  states.  During  the  period  between  1830  and  1860,  however, 
a  reform  movement  began  to  spread  over  the  country,  and  then  the 
idea  that  the  world  can  be  made  good  by  law  began  to  manifest 
itself  in  legislation.  During  that  period  a  number  of  the  states 
passed  prohibition  laws,  and  almost  all  of  them  passed  laws  having 
for  their  purpose  the  regulation  of  the  morals  of  the  individual. 
This  class  of  legislation  received  a  check  during  the  civil  war  and 
the  reconstruction  period  which  followed;  but  in  recent  years  has 
broken  out  with  increased  violence. 

Blackstone  tells  us,  that  in  legislation  by  the  people,  they  will 
show  great  caution  in  making  new  laws  which  may  interfere  with 
their  rights  and  liberties.  Exactly  the  reverse  has  proven  true. 
There  have  seldom  been  as  many  restrictions  placed  upon  the  con- 
duct of  a  people  by  a  monarch  as  the  people  of  this  country  have 
placed  upon  themselves.  We  seem  perfectly  willing  that  the  legis- 
lature elected  by  ourselves  may  impose  upon  us  the  standards  of 
self-righteousness  of  any  sect  or  faction. 

The  distinction  between  those  things  which  are  criminal  and 
those  things  which  are  merely  sinful  is  entirely  lost;  and,  going 
further,  we  legislate  against  those  things  which  are  neither  sinful 
nor  criminal,  but  which  the  passing  whim  of  some  individual  or 
organization  seeks  for  the  moment  to  condemn. 

Some  penurious  traveler  observes  that  the  man  who  gives  the 
porter  or  waiter  a  quarter,  gets  better  service  than  himself.  In  his 
anger  he  goes  to  the  legislature  and  a  law  against  tipping  is  the 
result. 

Some  man  goes  out  with  a  crowd  of  good-fellows  and  awakes  the 
next  morning  with  a  bad  taste  in  his  mouth  and  a  pain  in  his 
head,  and  before  his  mind  becomes  clear,  he  has  drafted  a  statute  or 
an  ordinance  against  treating;  and  we  submit  to  these  regulations 
upon  two  conditions:  First,  they  must  always  be  imposed  by  a 
legislature  which  we  ourselves  have  elected;  and,  second,  we  must 
never  be  required  to  observe  them. 

Just  prior  to  the  revolution,  parliament  passed  a  law  authorizing 
the  king's  officers  armed  with  writs  of  assistance,  to  make  searches 
of  the  houses  of  the  colonists.  The  outcry  against  this  procedure 
is  historic.  Imagine  the  indignation  that  would  have  been  aroused 
if,  in  addition  to  the  powers  conferred,  they  had  been  authorized  to 
make  a  tour  of  inspection  of  the  hotels  and  restaurants  to  determine 
if  the  bed  sheets  were  all  nine  feet  long  and  the  kitchen  in  a  proper 
state  of  sanitation.  It  would  have  been  prominently  mentioned  in 


HON.  OSCAR  CAIN 


the  Declaration  of  Independence  and  made  the  subject  of  a  clause  in 
the  Constitution  of  the  United  States.  But  we,  the  descendants  of 
those  people,  are  daily  permitting  restraints  to  be  imposed  upon  our- 
selves, any  one  of  which,  in  the  eyes  of  our  forefathers,  would  have 
justified  the  revolution. 

In  the  State  of  Washington  a  man  may  not  take  a  drink  upon  a 
train  or  other  public  conveyance,  or  give  a  dime  to  the  porter  who 
shines  his  shoes,  or  the  waiter  who  serves  his  meal,  or  have  in  his 
possession  any  wild  bird,  living  or  dead;  or  sell  whiskey  under  four 
years  old,  unless  it  be  Scotch  or  Irish  whiskey;  or  cut  his  neighbor's 
harness  when  his  team  is  hitched  at  a  religious  meeting,  or  untie 
a  horse  from  a  post  to  which  it  has  been  hitched  by  its  owner,  or 
post  a  handbill  upon  a  fence;  or,  if  he  be  afflicted  with  insomnia, 
walk  the  streets  at  late  or  unseemly  hours  without  subjecting  himself 
to  prosecution;  nor  may  a  boy  throw  a  stone  at  a  barn,  or  destroy 
a  bird's  nest,  or  have  the  eggs  of  a  wild  bird  in  his  possession,  or 
kill  a  honey  bee;  or  have  tobacco  in  any  form  in  his  possession  until 
he  is  twenty-one  years  old,  without  subjecting  himself  to  a  fine  and 
imprisonment. 

In.  Oklahoma,  every  person  who  leaves  an  animal  hitched  during 
cold  weather,  or  in  the  night  time,  is  guilty  of  a  misdemeanor. 
The  statute  does  not  specify  the  length  of  time,  or  degree  of  cold 
required  to  bring  the  offender  within  its  operation.  In  that  state 
the  use  of  profane  language  is  prohibited  without  regard  to  time  or 
place.  The  law  applies  alike  to  the  man  who  swears  in  public  and 
tq  the  farmer,  who  alone  in  the  field,  urges  his  team  to  greater 
activity  by  the  use  of  language  forbidden  by  the  second  command- 
ment; and  this,  too,  in  a  state  where  farming  operations  are  largely 
conducted  with  mules. 

Blasphemy  is  also  defined  and  made  punishable  by  the  laws  of 
Oklahoma.  Among  other  things,  it  consists  of  "casting  contumelius 
reproach  upon  the  Christian,  or  any  other  religion." 

In  Idaho  a  fine  of  not  to  exceed  five  hundred  dollars  is  the  pen- 
alty prescribed  for  selling  intoxicating  liquor  at  a  camp  meeting. 
Inasmuch  as  the  laws  of  that  state  presciibe  a  fine  of  three  hundred 
dollars  and  six  months'  imprisonment  for  selling  liquor  without  a 
license,  it  would  seem  that  the  statute  was  enacted  to  encourage  the 
practice  which,  by  its  letter,  it  forbids. 

In  several  states  it  is  a  misdeameanor  to  bet  upon  an  election,  and 
in  one  it  is  an  offense  for  a  high  school  student  to  enter  a  fraternity; 
but  it  remains  for  Kansas,  the  state  whose  name  is  so  prominent  in 
the  great  struggle  for  human  freedom,  to  strike  the  final  blow  at 
the  liberty  of  the  citizen.  In  that  state  it  is  made  a  crime  for 


MODERN  TENDENCIES  OF  LEGISLATION 


any  person  to  eat,  or  pretend  to  eat,  any  snakes,  lizzards,  scorpions, 
centipeds,  tarantulas  or  other  reptiles  in  any  public  place. 

The  above  instances,  and  many  others  that  might  be  cited,  show 
the  extremes  to  which  legislation  has  gone  in  an  effort  to  regulate 
every  phase  of  human  conduct  by  law.  Dr.  Samuel  Johnson  tells 
us  that  law  is  the  result  of  human  wisdom  acting  upon  human 
experience  for  the  benefit  of  the  public.  He  would  doubtless  have 
entertained  a  different  opinion  of  many  of  our  recent  statutory 
enactments. 

This  class  of  legislation  would  not  seem  so  ridiculous  if  it  had 
the  slightest  tendency  to  decrease  the  vice  or  folly  at  which  it  is 
leveled.  If,  by  reason  of  it,  the  public  peace  were  less  frequently 
invaded,  or,  through  its  passage,  public  morals  had  attained  to  a 
higher  standard,  we  could  feel  that  we  had  secured  something  in 
return  for  the  liberties  we  have  surrendered.  But  the  most  noticeable 
consequence  of  such  legislation  is  a  wide-spread  and  growing  disre- 
spect for  the  law.  Nobody  pretends  to  obey  these  laws;  no  public 
officer  charged  with  their  enforcement  seems  to  understand  that 
they  were  ever  enacted  to  be  obeyed.  The  public  which  clamors 
for  their  enactment  takes  not  the  slightest  interest  in  their  en- 
forcement. We  seem  perfectly  willing  that  any  course  of  conduct 
may  continue  if,  in  addition  to  its  being  wicked  or  foolish,  we  can 
make  it  criminal. 

The  tendency  of  modern  legislation  to  create  boards  and  com- 
missions, to  which  are  delegated  important  functions  of  state  and 
federal  government,  is  a  distinct  departure  from  what  was  once 
considered  a  fundamental  principle  of  popular  government  and  is 
one  of  the  most  striking  tendencies  of  modern  legislation. 

These  commissions  are  constantly  increasing  in  number  and  effi- 
ciency, in  the  face  of  a  strong  popular  prejudice  against  bureaucracy, 
and  contemporaneously  with  a  growing  demand  for  direct  govern- 
ment through  the  medium  of  the  initiative  and  referendum  and 
direct  primary,  to  the  underlying  principles  of  which  they  seem 
in  direct  opposition.  Originally  they  were  mere  boards  appointed 
by  the  governor,  and  usually  selected  from  the  members  of  his 
party  who  had  contributed  their  time  and  money  to  his  campaign, 
and  who,  in  return,  wished  to  be  rewarded  by  some  official  distinc- 
tion which  would  not  involve  exertion  or  responsibility.  Their  duties 
usually  consisted  of  investigating  the  public  institutions  and  public 
service  corporations  under  their  jurisdiction  for  the  purpose  of  col- 
lecting information  to  be  used  as  the  basis  of  recommendations  to 
the  legislature.  The  traveling  done  in  the  performance  of  their 
duties  was  generally  in  the  nature  of  a  holiday  excursion,  frequently 
as  the  guests  of  the  institution  or  corporation  under  investigation. 
They  seldom  found  any  serious  fault  or  recommended  any  radical 


HON.  OSLAR  CAIN 


Changes.  They  were  chiefly  noted  for  their  extravagance,  incompe- 
tence and  inefficiency.  Despite  the  prejudice  that  their  administra- 
tion of  affairs  engendered  in  the  public  mind,  they  have  greatly 
increased  in  number  and  have  been  clothed  with  additional  powers. 
They  are  now  generally  composed  of  men  who  devote  their  entire 
time  to  the  discharge  of  their  duties;  who  are  compensated  for  their 
-services  and  who  have  had  some  training  along  the  line  of  the  duties 
which  they  undertake. 

The  powers  which  they  now  exercise  are  so  extensive  that  they 
=are  referred  to  by  some  writers  as  the  fourth  department  of  the 
government.  The  power  to  fix  freight  rates  and  rates  charged  for 
gas,  water  and  electricity;  to  fix  charges  and  services  of  telephone 
and  telegraph  companies;  to  fix  charges  and  service  of  wharfingers 
and  warehouses,  together  with  the  power  to  order  improvements  and 
to  prescribe  rules  for  the  conduct  of  the  business  of  such  institutions, 
is,  in  most  states,  exercised  by  these  commissions. 

In  addition  to  these  are  industrial  commissions,  tax  commissions; 
boards  of  health,  boards  of  control;  forest  commissions;  boards  of 
accountants;  highway  commissions,  and  various  boards  of  examiners, 
which,  to  a  greater  or  less  extent,  exercise  similar  powers. 

In  the  federal  government  these  commissions  have  their  counter- 
part in  the  Interstate  Commerce  Commission,  with  power  to  fix 
freight  rates;  the  Department  of  Commerce  and  Labor,  with  power 
to  try  and  determine  the  question  of  the  legal  residence  of  an 
alleged  alien,  and  the  Department  of  Agriculture,  with  power  to 
prescribe  rules  for  the  regulation  of  Forest  Reserves. 

The  interesting  feature  of  it  all  is,  that  we  are  centralizing  to 
a  certain  extent  all  of  the  powers  of  the  three  original  branches  of 
government  into  a  fourth  branch,  further  removed  from  the  popular 
will  than  any  of  the  others;  and  this,  at  a  time  when  it  is  commonly 
supposed  we  are  drifting  toward  direct  government. 

In  states  where  the  initiative  and  referendum  are  in  operation, 
commissioners  are  being  created,  clothed  with  certain  powers,  leg- 
islative in  their  nature,  further  removed  from  the  people  than  ever 
the  legislature  was. 

While  demand  for  the  recall  of  judges  is  increasing,  commissions 
exercising  highly  important  judicial  functions  are  springing  into 
'•xistence,  the  members  of  which  are  neither  subject  to  recall  nor 
•  •lected  by  the  people;  and  strange  as  it  may  seem,  these  commissions 
lind  their  strongest  champions  among  the  people  who  favor  'the 
initiative,  referendum  and  recall. 

It  is  difficult  to  forsee  where  this  tendency  toward  government 
by  commission  may  end.  The  more  strongly  the  idea  may  be 
opposed  to  the  principles  advocated  by  an  organization  or  party, 


MODERN  TENDENCIES  OF  LEGISLATION 


the  more  readily  that  organization  or  party  submits  to  its  rule.  There 
is  probably  no  class  of  people  among  whom  the  sentiment  for  th<? 
recall  of  judges  is  so  strong  as  the  laboring  class;  yet  they  willingly 
submit  the  questions  arising  out  of  personal  injuries  received  by 
them  to  an  industrial  commission  which  is  appointed  by  the  gov- 
ernor, and  which  is  beyond  the  reach  of  popular  recall;  which  has 
power  to  promulgate  rules  governing  the  amounts  to  be  paid  into 
and  out  of  the  accident  fund;  regulate  the  proof  of  accident  and 
extent  thereof;  the  proof  of  death;  the  proof  of  relationship  and1 
the  extent  of  dependency  of  the  person  claiming  damage,  and  this  in 
a  proceeding  at  which  the  injured  person  has  no  legal  right  to  be 
present. 

Congress  has  recently  created  a  tariff  board  or  commission,  with 
power  to  inquire  into  and  make  recommendation  to  congress  con- 
cerning the  duty  upon  imported  articles,  and  it  is  seriously  proposed 
to  confer  upon  this,  or  a  similar  commission,  the  power  to  determine 
the  amount  of  duty  imposed.  Such  a  law  will  remove  from  the  leg- 
islative department  a  question,  the  determination  of  which  has  in 
times  past,  been  one  of  the  most  important  subjects  over  which  it 
exercised  control  and  which  has  been  the  subject  of  more  contro- 
versy than  any  other  before  the  American  people.  A  recent  presi- 
dent seriously  recommended  that  the  contracts  and  affairs  of  all 
corporations  (and  the  bulk  of  modern  business  is  done  by  corpor- 
ations) should  be  submitted  to  a  commission. 

The  immigration  laws  confer  upon  the  Department  of  Commerce 
and  Labor  power  to  try  and  determine  the  question  of  legal  residence 
of  an  alleged  alien  and  to  order  him  deported  if  found  to  be  illegally 
in  the  United  States,  and  its  conclusions  are  binding  upon  the 
courts  as  to  all  matters  of  fact. 

The  power  conferred  upon  the  Secretary  of  Agriculture  to  pre- 
scribe rules  for  the  regulation  of  forest  reserves,  a  violation  of 
which  is  punishable  by  fine  and  imprisonment,  is  a  power  which  at 
one  time  was  supposed  To  rest  exclusively  with  the  legislature.  It 
required  some  very  ingenuous  reasoning  upon  the  part  of  the 
Supreme  Court  of  the  United  States  to  save  this  statute  from  con- 
flict with  the  constitution. 

And  thus  the  idea  that  the  government  is  composed  of  the  legis- 
lative, executive  and  judicial  branches  is  gradually  being  encroached 
upon;  and  a  fourth  department  is  springing  into  existence,  combin- 
ing the  powers  of  all  of  the  other  three. 

In  much  of  the  legislation  of  recent  years,  there  is  a  strong  tend- 
ency toward  restricting  the  right  to  contract.  Almost  every  state 
now  has  a  law  regulating  hours  of  service  upon  public  works  and 
public  service  corporations  and  fixing  a  minimum  wage  to  be  paid 


HON.  OSCAR  CAIN 


upon  public  works.  Some  states  have  passed  laws  regulating  hours  of 
service  for  women  in  factories  and  prohibiting  children  from  working  in 
them.  The  age  of  prohibition  being  generally  fixed  at  from  fourteen  to 
sixteen  shears.  A  few  states  prohibit  children  under  fourteen  from 
doing  any  work  for  compensation;  a  number  of  the  states  have 
laws  requiring  corporations  to  pay  their  employees  weekly,  and 
most  of  these  laws  require  payments  to  be  made  in  actual  money. 

Closely  allied  to  the  above  are  laws  prohibiting  factories  from 
building  houses  and  renting  them  to  their  employees.  This  legisla- 
tion, and  much  more  of  similar  character,  is  directed  at  well  known 
and  generally  recognized  abuses.  The  practice  of  paying  laborers  in 
time  checks,  which  were  discounted  by  the  employer  or  some  one 
acting  for  him,  or  paying  them  in  commodities  furnished  at  a  store 
of  which  the  employer  was  the  owner  and  usually  at  a  price  materially 
higher  than  the  regular  market  price,  and  building  houses  and  re- 
quiring employees  to  occupy  them  at  exorbitant  rental,  were  all  very 
great  evils;  yet  they  have  not  been  abolished  without  curtailing  a 
right  which  was  at  one  time  sacredly  guarded  by  the  law;  namely, 
the  right  to  freedom  of  contract;  nor  have  these  rights  been  surrend- 
ered without  some  attending  inconvenience.  During  the  panic  of  1907, 
a  number  of  factories  were  compelled  to  close  because  the  employees 
could  not  be  paid,  in  part,  in  time  checks,  although  the  employers  were 
willing,  and  the  employees  anxious,  to  make  such  an  arrangement. 

It  is  surprising  to  note  in  connection  with  labor  legislation  and 
legislation  creating  boards  and  commissions,  how  much  of  this  ancient 
right  to  contract  has  gone.  Nor  does  its  loss  excite  any  considerable 
protest.  The  average  man  seems  willing  to  surrender  the  substance 
if  he  may  retain  the  form  of  freedom.  A  man  who  would  shoulder 
his  musket  to  defend  his  rights  to  vote  for  road  supervisor  will 
surrender  his  right  to  fix  by  contract  the  rate  which  he  shall  pay  for 
shipping  his  produce;  or  the  price  of  the  gas  or  electricity  he  con- 
sumes; or  the  number  of  hours  he  may  work  at  a  giving  calling, 
without  a  murmur.  Legislative  interference  with  the  individual  citizen 
is  gradually  intruding  itself  into  every  walk  of  life.  The  occupations  of 
barbers,  plumbers,  blacksmiths,  coal  dealers  and  junk  dealers  are,  ono 
at  a  time,  being  brought  within  the  supervision  of  the  law.  No  matter 
in  what  field  of  endeavor  the  citizen  may  be  engaged,  the  tendency  is 
to  substitute  for  his  individual  judgment  and  discretion,  the  judg- 
ment and  discretion  of  the  state. 

It  is  not  the  purpose  of  this  paper  to  contend  that  the  good 
accomplished  by  this  class  of  legislation  is  of  greater  or  less  value 
than  the  rights  surrendered,  but  merely  to  note  its  departure  from 
what  were  once  considered  fundamental  principles  of  the  law.  In  all 
of  this  class  of  legislation  is  discernable  the  strong  tendency  of  our 


MODERN  TENDENCIES  OF  LEGISLATION 


government  toward  paternalism,  and  it  may  not  be  out  of  place  to 
observe  that  when  a  government  has  become  paternal  in  its  nature, 
it  has  taken  a  long  step  toward  socialism.  When  we  have  brought  a 
few  more  trades  and  occupations  under  the  supervision  of  the  law, 
and  a  few  more  industries  under  the  control  of  boards  and  commis- 
sions, and  clothe  them  with  a  few  additional  powers,  we  have  but 
to  take  one  more  step — transfer  the  title  to  property  to  the  govern- 
ment, and  socialistic  government  is  already  organized,  equipped  and 
in  working  order. 

Perhaps  the  most  harmful  feature  of  modern  legislation  is  the 
tendency  which  in  recent  years  amounts  to  a  mania  to  tinker  with 
the  law  without  any  definite  end  or  purpose  in  view.  Legislators, 
who  know  nothing  of  the  law  as  it  now  exists,  consider  themselves 
perfectly  competent  to  amend,  repeal  or  modify.  Just  as  the  lawyers 
are  beginning  to  be  able  to  advise  their  clients  of  their  legal  rights, 
and  courts  to  enforce  those  rights  under  existing  laws,  we  have  a  new 
session  of  the  legislature  attended  by  a  cloudburst  of  legislation  and 
chaos.  A  lawyer  opens  a  new  volume  of  the  session  laws  with 
feelings  very  much  akin  to  those  with  which  he  would  unpack  an 
infernal  machine.  He  knows  that  he  will  find  that  property  rights 
have  been  changed  at  random;  that  rules  of  court  procedure  have 
been  established  by  men  who  would  not  know  the  difference  between 
a  demurrer  and  a  bill  of  particulars;  that  crimes  have  been  created 
involving  neither  wrongful  intent  nor  moral  turpitude. 

In  1881,  the  legislature  of  the  then  territory  of  Washington  re- 
vised and  codified  the  laws.  The  laws  thus  compiled  are  known  as 
the  code  of  1881.  This  volume  consists  of  580  pages,  exclusive  of  the 
index,  and  contains  all  necessary  legislation.  Since  that  time,  sixteen 
volumes  of  session  laws  have  accumulated,  and  the  laws  now  in 
force  aggregate  something  over  four  thousand  pages.  It  may  well 
be  doubted,  however,  if  justice  is  more  speedily  or  more  adequately 
administered,  or  if  the  business  of  the  state  and  its  municipalities 
is  more  economically  or  satisfactorily  transacted  than  it  would  have 
been  had  there  never  been  a  session  of  the  legislature  since.  This 
does  not  imply  that  some  good  laws  have  not  been  enacted  since  that 
time,  but  the  uncertainty  incident  to  constant  change  has  probably 
been  productive  of  as  much  evil  as  the  good  laws  enacted  have 
remedied. 

Among  other  things,  the  code  of  1881  provides  for  the  levy  and 
collection  of  taxes.  It  is  interesting  to  note  the  vicissitudes  through 
which  this  law  has  passed  since  its  enactment.  By  its  terms  taxes 
became  delinquent  on  the  31st  day  of  December,  at  six  p.  m.  The 
legislature  of  1889  changed  the  date  of  delinquency  to  June  1st;  the 
legislature  of  1891  changed  the  date  to  March  1st;  in  1893  it  was 


HON.  OSCAR  CAIN 


changed  to  April  1st,  and  in  1895  it  was  again  changed  to  June  1st, 
where  it  now  remains.  Two  legislatures  since  that  date  have  re- 
enacted  the  section  fixing  the  date  at  June  1st.  I  have  mentioned 
the  time  of  delinquency  merely  as  an  illustration.  Almost  every 
section  of  the  law  has  encountered  a  similar  fate.  The  code  of 
public  instruction  has  also  been  a  favorite  field  for  legislative 
activity.  Every  legislature  since  1881,  with  the  exception  of  1905, 
has  juggled  with  this  act.  The  sections  providing  for  the  time  for  hold- 
ing elections;  the  distributing  of  the  school  fund;  the  duties  of  directors, 
and  the  duties  and  powers  of  county  superintendents  have  been  shaken 
up  from  time  to  time  like  the  contents  of  a  trick  box. 

It  would  be  tiresome  to  go  into  details  with  reference  to  the 
changes  that  have  been  made  in  regard  to  the  insurance  laws;  the 
public  land  laws;  the  road  laws;  the  game  and  fish  laws;  the  mili- 
tary code  and  the  election  laws.  They,  like  all  others  upon  our 
statute  books  have  been  the  victims  of  the  modern  mania  for  legis- 
lation. Nor  is  Washington  the  only  state  afflicted  in  this  regard. 
Our  expertence  is  the  experience  of  every  state  in  the  Union;  but, 
strange  as  it  may  seem,  the  popular  criticism  which  this  changing 
of  the  law  arouses  is  directed,  not  at  the  legislature,  but  at  the 
courts. 

If  the  courts  declare  one  of  these  acts  unconstitutional,  they 
are  accused  of  over-riding  the  will  of  the  people  as  expressed  by  the 
legislature.  If  they  attempt  to  construe  them  into  intelligent  mean- 
ing, we  hear  of  "judge-made"  law;  if  they  follow  them,  they  are 
censured  for  allowing  justice  to  be  defeated  by  adherence  to  techni- 
calities. Most  of  these  useless  changes  in  the  law  are  doubtless  due 
to  the  prevalent  American  notion  that  law-making  is  the  one  occupa- 
tion that  requires  no  previous  education  or  experience. 

"A  man  must  serve  his  turn  at  every  trade, 
Save  censure;  Critics  all  are  ready  made," 

says  Lord  Byron  in  his  "English  Bards  and  Scotch  Reviewers."  We 
have  placed  law-makers  in  this  class. 

The  blacksmith  who  should  undertake  to  repair  the  delicate 
mechanism  of  a  watch;  the  butcher  who  should  attempt  a  serious 
surgical  operation;  the  stone  cutter  who  should  try  to  trace  the  grace- 
ful curves  of  the  Venus  di  Milo,  would  bring  to  the  undertaking 
experience  as  adequate  and  training  as  well  suited  to  the  task  as  is 
possessed  by  the  average  legislator  for  the  duty  of  making  law. 

When  it  is  considered  that  all  property  rights  originate  in  the  law; 
that  all  contractual  relations  are  governed  by  it  and  that  life  and 
liberty  look  to  it  for  protection,  it  would  seem  that  public  sentiment 
should  demand  that  it  be  given  some  degree  of  permanency;  but  the 
more  laws  that  are  made,  the  more  are  demanded.  According  to  the 


MODERN  TENDENCIES  OF  LEGISLATION 


popular  conception,  the  legislature  does  not  change  them  with  suffi- 
cient rapidity,  and  a  clamor  arises  for  the  initiative  and  referendum 
in  order  that  legal  principles  may  be  abolished  and  rules  of  law  un- 
settled without  the  intervention  of  the  middle  man. 

Where  will  it  all  end?  Will  we  sometime  learn  that  property,  lib- 
erty and  morality  are  best  guarded  by  laws  reflective  of  the  settled 
convictions  of  years,  or  will  we  continue  to  place  the  passing  whim 
of  every  agitator  and  notoriety  seeker  upon  our  statute  books  until 
we  reach  that  condition  which,  one  morning  upon  the  plains  of 
Shinar,  found  the  descendants  of  Noah  babbling,  each  in  a  langua  :e 
that  none  of  the  others  understood. 


*  *f  tvr 

PAMPHLET  BINDER 
Syracuse,  N.  Y. 

Stockton,  Colif. 


.IBRARY  FACILITY 


000683510   2 


